When DCPP comes to Family Court


Not every family law case involving DCPP begins with DCPP filing a complaint against a parent. Many times, parents are involved in a dispute, an allegation of child abuse or neglect occurs and the agency becomes involved in investigating, although they have not yet decided to file a complaint. In these instances, it is not uncommon that the Family Court judge hearing the matter will simply order the parties to “cooperate with DCPP”. And by “cooperate”, the court usually means attend evaluations, cooperate in counseling or other “services” and other significant forms of relief that the division would otherwise have to seek by way of a formal complaint and adducing the appropriate proofs at trial.

Most family law practitioners, not wanting to upset the apple cart, simply agree to “cooperate with DCPP”, feeling that this will expedite their client’s return to a normal custody and parenting time arrangement. Unfortunately, this is not always the case.

Many times, the agency becomes involved to investigate, and being given carte blanche by the family court judge, choose to impose upon parents lengthy, overwhelming services that may or may not be necessary. But, since the agency is relieved of its responsibility to file a complaint and prove its case that the services are necessary, by virtue of the family court judge simply directing the parties to “cooperate with DCPP”, the agency can do whatever it wants.

So what has to be done when DCPP is investigating an allegation during the course of family court litigation? The first thing that the practitioner should be mindful of is noting to the court that were DCPP to file a complaint, it would have to prove its case by a preponderance of the evidence before services could be ordered by the court. Parents do not lose those statutory protections because DCPP is investigating without need of filing a complaint because a parent has already chosen to do so.

Second, practitioners should be mindful that the division determination that a certain service is necessary does not compel the result that that service must be provided by the state, in lieu of privately obtained services by the parents. So, for instance, if a parent is directed to participate in counseling, nothing prohibits the parent from seeking counseling through his or her private insurance. In fact, doing so often accelerates the creation of a true therapeutic doctor-patient relationship, as the parent is not weary that any and everything stated to this person will be reported back to the agency.

Finally, it is important that attorneys do not allow themselves to be bullied with a misplaced perception by the judge that a parent’s refusing to “cooperate with DCPP” has something to hide or is culpable of child abuse. Attorneys should offer themselves up as a shield for their clients. Let the court know that your client is more than willing to cooperate with the agency, but you are not willing to subject your client to division involvement absent asserting these protections for him or her, out of concern for your ability to advocate and protect their interests down the road.

Do not forget that Superior Court judges were once attorneys themselves. Even if they did not handle child abuse cases in their practice, they understand the concept of a lawyer’s need to protect his or her client. Assert that need to protect to shield your client from any adverse inferences from the failure to “cooperate”.

At the end of the day, your client may still desire to “cooperate” with DCPP. It maybe faster and accelerate reunification and:or resumption of normal parenting. As long as he or she understands the risks associated with this, that decision belongs to the client alone. But it needs to be an informed decision, and that is where parent attorneys are most vital to this process.

If you or someone you know is involved in a family court matter involving DCPP, please contact Paragano & Williams, LLC to schedule a consultation.

No More KLG based upon DCPP Lies … at least Not This One Particular Lie


In a published decision on June 11, 2013, the Appellate Division has explicitly prohibited trial Courts from ratifying the outright FALSE information given to resource parents by the Division of Child Protection and Permanency (“DCPP”) (formerly, the Division of Youth and Family Services (“DYFS”)). Specifically, in DYFS v. H.R. & N.B., the Appellate Division remanded to the trial Court the issue of alternatives to TPR (termination of parental rights) because the relative placement repeatedly testified that DCPP had told her in no uncertain terms that Kinship Legal Guardianship (KLG) was not available for her niece because the child was not 12 years of age.

The Court pointed out that this clearly erroneous 12-year benchmark was NOT included in the KLG statute. Further, once the trial Court became aware of the relatives’ misinformed perception that KLG was not available for a child under age 12, it had a duty to correct the misinformation.

What’s shocking about this decision is NOT the fact that DCPP lied to the resource parents. That happens all the time. Any attorney who does this work is likely familiar with the anecdotal tales of foster parents being told they MUST adopt or the children for whom they provide care will be yanked away by the Division. We hear, routinely, about the “12-year-old-rule” for KLG. No surprises there.

But when, exactly, is someone – ANYONE – going to address the fact that this very powerful government agency routinely lies to families involved with the child welfare system? This case provides evidence that, not only was the 12-year-old-rule offered up as gospel by the caseworker involved with this family, but she learned of it when she attended a foster parent class!

The Division LIE – “the 12-year-old-rule” was a part of its inculcation of foster parents… State-administered training courses premised upon a LIE by the State. And yet, while the Appellate Division correctly remanded the matter to be considered anew by the trial judge because of the patently inaccurate information provided by DCPP to the foster parent, the fact that an appeal was required in order to right this wrong is disturbing.

When, exactly, will trial Courts respond to outright lies by the Division with the same outrage engendered by lies told by litigants? Shouldn’t we, as a society, be able to rely upon the representations of those in power, those entrusted with protecting our most valuable asset – i.e., children? If anything, shouldn’t there be some sanction for the agency, which is already gifted with the benefit of a presumed “high degree of reliability” per the Cope decision?

When members of the defense bar routinely hear of patterns of practice by the Division that contravene statutes, case law, court rules, administrative regulations, AOC policies, court orders and other legal mandates, we must not shy away from unveiling these atrocities for the trial Court’s consideration. Hopefully, armed with the H.R. case, we now have strong precedent to urge trial Courts not to look past the manipulations of this agency.

One can only hope that trial Courts begin to see how rampant the Division’s lies are … and begin to do something about it.

What is a Dodd Removal?


When DCPP, the Division of Child Protection and Permanency (formerly, DYFS, the Division of Youth and Family Services) investigates an allegation of child abuse or neglect, and uncovers what it believes to be “imminent risk of harm”, the Division may remove the children from the home immediately without a court order. N.J.S.A. 9:6-8.28. This removal is referred to as a “Dodd” removal, named after the legislator who sponsored the legislation giving the Division this right. Once a Dodd removal occurs, the Division must be before a judge seeking a court order ratifying the Dodd within two court days.

What constitutes “imminent risk of harm”? That varies from county to county, and frankly, from investigator to investigator. However, some general parameters include child sexual abuse where the alleged perpetrator is in the home; physical child abuse that would rise to the level of an “aggravating circumstance” that would relieve the Division of its obligation to make reasonable efforts to avoid placement; abandonment (i.e., child in the home with no caregiver), or acts of a similarly serious nature.

Unfortunately, the Division will, from time to time, act improvidently in removing children from their home. This may occur in circumstances where the parent has been voluntarily accepting services from the Division over a period of time, and the agency ultimately comes to the conclusion that it is tired of trying to work with the parents and feels court intervention must be imposed upon the family to effectuate the positive result sought.

It is also not unheard of that the agency will threaten to do a Dodd removal in order to scare parents into signing contracts with the agency, allowing unfettered access to a home, signing releases for medical or mental health information that is otherwise protected, and similar overreaching to accomplish what they otherwise could not.

Many times, parents will contact counsel after the fact and claim that they only signed agreements and authorized the release of confidential information upon threat of removal by the Division. Such tactics constitute a gross violation of the public trust and misuse of government authority. Unfortunately, my experience has been that judges are upset by improvident removals than by noncooperation by parents when the Division investigates. Therefore, one must not casually disregard the Division’s threats to remove children, even when the parent believes the agency could not ultimately prove “imminent risk of harm” in court.

If you or someone you know has been contacted by the Division seeking to investigate, before denying access and facing potential removal, contact Paragano and Williams, LLC for a consultation.

What a difference a year makes!


In litigation brought by the division of Child Protection and Permanency (DCPP)(formerly the Division of Youth and Family Services (DYFS)), one year is a very significant benchmark in the case. After one year in litigation, the court is required to conduct a permanency hearing and to approve a plan to achieve permanency for the child. That plan may include reunification with the parent, termination of parental rights followed by adoption, kinship legal guardianship with a relative, or one of three other alternatives. N.J.S.A. 9:6-8.50.

Though there is no statutory requirement for litigation to last one year, anecdotal experience from child welfare attorneys supports that this is typical. Various, however, a requirement for a permanency hearing within one year pursuant to the a
Adoption and Safe Families Act (ASFA).

Further, parent educational materials distributed in child welfare courts, provided by the Administrative Office of the Courts (AOC), that the case should be resolved with reunification, if possible, within one year.

But should we accept the de facto presumption that the litigation must last a year? Does having a one-year “benchmark” allow the agency to justify its delay in implementing necessary services to achieve reunification? Does having a one-year benchmark encourage the agency to talk on additional requested services for family over the course of that year, knowing that the practice typically includes a one-year period of litigation? And because it is exceedingly rare that a court will not grant the agency its request for additional services, what is lost, really, by requesting more and more and more of a parent because the agency has one year to play with?

It is a dirty little secret of child welfare agencies that services are often provided to families solely for the purpose of meeting the statutory requirement down the line to terminate parental rights. Now that ASFA requires concurrent planning, the agency cannot take this “over servicing” approach with only those families anticipated to have termination in their future; it adopts this approach for all families.

The consequence of this “standard operating procedure” is that many families are simply tortured by a one-year entitlement by the agency to control its life, rather than a strategic, directed approach to help families and end litigation. It is true that many families achieve reunification before the end of litigation, as a parent may seek return of the child at any time, which shall be granted unless there is evidence of harm to the child’s health, safety or welfare. See, N.J.S.A. 9:6-8.32(a). Yet, it is all too common that the division successfully opposes reunification upon the stated concern that a lapse of perfection upon reunification will only result in a subsequent removal.

This concern is not totally unwarranted. However, the one year benchmark is far too often used as a guillotine over families, rather than a tempered response to the circumstances presented to the court. Wow the benchmark appears to be here to stay, we should not accept that one year is a magic number that should guide most cases. Each case requires and deserves a case-by-case individual approach.

If you or someone you know is involved in child welfare litigation that appears to be dragging on needlessly, contact Paragano & Williams, LLC for assistance resolving your matter expeditiously.

Medically Fragile Children in DCPP/DYFS Custody


Children who are considered “special needs” that end up in resource care are required to be placed with special placement providers who are trained to provide a higher degree of care. These homes are referred to as “ships” placements. “Ships” is abbreviated as SHSP (Special Home Service Provider).

Children who are placed in SHSP’s homes are typically those with medical injuries that require more frequent medical attention than children in the same age category without such injuries. However, not every child who has some form of medical ailment or injury requires such a placement. For instance, a baby who was not yet ambulatory at the time of an injury that is now in a cast requires no higher degree of attention and care than any other baby, except that she must have her cast carefully cleaned, examined, et cetera.

The determination of whether a child requires a SHSPs home is an important one. If the child is placed in such a home, the parent will likely receive substantially less parenting time with the child, as relative placements are unlikely. With standard placements, relatives can be provisionally approved, subject to completing the foster parent training (i.e., referred to as the Pride training course). If a child is medically fragile, the placement must be a SHSPs foster placement, and the division and the court are less likely to approve a relative for placement, subject to subsequent training.

Of course, one must question why this is the case. After all, if a parent leaves the hospital with a child in a cast, with a medical problem, one requiring higher attention in the detailed medical instruction, that child is still released to his parents with instruction from his doctors. Yet, with foster placements, the state takes the position that some “high degree” of medical training is required in order to have placement of the child, no matter the degree of injury or ailment from which the child suffers. This is likely because parents are entitled to commit simple negligence when caring for their children, whereas the state is not. As such, the state is less likely to accept well-intentioned foster placements that do not meet their highest criteria for care if the child has already been physically injured, resulting in removal from the parents and placement in foster care.

It is important to look to the child’s specific injuries when evaluating whether or not a SHSP home is required. Many times, when such a placement is not required, exploring the basis for the placement can give helpful insights to the court when evaluating the case as a whole. Specifically, if the Division has reached the knee-jerk conclusion that it must have been the parent’s abuse that caused the child’s injuries, the division often takes draconian measures to ensure the parent is afforded as little contact with the child as possible while in placement. This often occurs by the Division’s insisting upon a SHSP’s placement when one is not required.

One way of uncovering such a tactic is by demanding a copy of the nurse’s notes that must be maintained for every SHSP’s placement. The division’s nurse is required to see the child weekly and make a detailed log of the child’s medical status, feeding schedule and care instructions administered by the resource parents in order to ensure that the child’s medical needs are being met in that placement. The parent is entitled to receive a copy of this nurse’s log upon request.

Rarely are these logs kept consistent with the training protocols and the requirements set forth in the administrative code. When these deficits are highlighted, the court will often grow weary of the division’s position as to the necessity of the placement, thereby calling into question the division’s position as to other issues in the case, including the parents’ culpability for the child’s injuries. One never knows what will be found until the information is sought and explored.

If you or someone you know has a child in placement that has been declared medically fragile when that designation appears unwarranted, please contact Paragano and Williams, LLC for assistance.

New Evaluation Protocol for Child Abuse Investigations


Effective in April 2013, the Division of Child Protection and Permanency (formerly the Division of Youth and Family Services) will have a new administrative options for determinations of child abuse investigation. As the law stands now, when the division investigates an allegation of child abuse or neglect, there are only two options for the “outcome” of the investigation. Either the allegation is substantiated or unfounded.

“Substantiated” means that it is more likely than not that the alleged offense did occur and/or that the alleged perpetrator is responsible. “Unfounded” means that either the alleged offense is not more likely than not to have occurred or that the alleged perpetrator is not the one responsible for the abuse or neglect. Once the referral is received, the investigation outcome can be based on the initial allegation or upon any information arising from the investigation.

There once was a time when there existed a third category of outcomes between “unfounded” and “substantiated”. That category was “unsubstantiated”. “Unsubstantiated” means something more than unfounded – i.e., that the referral was not “baseless”, but that the information could not be verified one way or another and hence, the division would not characterize the allegation as abuse or neglect.

Now, the new administrative protocol will have four levels of evaluation. They will have varying degrees of consequences, but the most significant is that only an allegation that is “substantiated” will result in a listing of the parent on the Child Abuse Registry maintained by the Department of Children and Families (DCF). On the flipside, only allegations that are “unfounded” will result in an expungement of the child abuse records, which will occur within three years of the “unfounded” outcome. For the two into room findings on child abuse investigation, the division will retain child-abuse records and may have some increased authority to provide services to the family absent consent; however, the parent will not be listed on the registry.

While it may appear to those who handle these cases that the new system provides opportunities for “settlement”, practitioners should still be wary of “settling” these cases. The reason is that the prior administrative finding, if not contested and/or if not resolved as a fact finding hearing with the finding other than “unfounded”, future child abuse investigations may present a greater difficulty for your client to defend them if the matter had been simply “unfounded”. As with any burgeoning area of the law, new administrative and/or legislative imperatives do still require a full analysis of potential consequences, with disclosure to the parent of the uncertainty of consequences, before a body of law will be established to address the new regulations. Parents should be voire dired about their understanding of the “settlement”, if any is proposed.

Further, defense counsel should be careful in negotiating and place into consent orders the representations upon which the parent is relying in “settling” their case. This ensures that future child abuse investigations will not have the presumptive effect that our law currently provides to substantiated child abuse in a parent’s history.

For more information about child abuse agency regulation changes, please contact us to schedule a consultation.

Happy Thanksgiving to the Families of New Jersey!


This time of year is fraught with sadness for so many people – particularly those children and families that are kept from their loved ones due to allegations of abuse or neglect. When abuse has been substantiated, families are kept apart to ensure safety of children. However, when abuse is only suspected, the separation of children from their families is all the more troubling and tragic.

The Division of Youth and Family Services (“DYFS”), n/k/a the Division of Child Protection and Permanency (“DCPP”) – like many other partiers involved in family court litigation – is usually taxed with requests for holiday parenting time at this time of the year. Last minute requests for increased parenting time, approval of additional supervisors, overnight access to allow all family members to attend gatherings out of state, present in droves.

To increase the likelihood that your family may enjoy time together at the holidays, during the pendency of a DYFS/DCPP matter, here are a few suggestions:

1. Aim to address holiday parenting time requests at least 4 to 6 weeks in advance of the holiday.

2. Identify as many family members and friends to the agency that may be evaluated and approved to supervise parenting time. A person who may be ineligible for placement (e.g., because of inadequate shelter) may be approved to serve as a supervisor at a holiday party.

3. Remember that not every parent requires supervision. The Division almost universally requests supervised parenting time for parents accused of any form of abuse or neglect. However, the agency and the court must identify a basis for supervision, and absent same, visitation is to be unsupervised.

If the allegation is medical neglect of a child, what risk can be identified from the alleged neglectful parent spending time in the presence of the child at a holiday event, when someone else in the family would be responsible for the child’s medical needs if any? Do not be afraid to make the argument.

4. Supervised overnight parenting time is not impossible to accomplish while ensuring safety for the child. If the accused parent has a substance abuse problem, how likely is it that the parent will abstain from substances while supervised until the child’s bedtime, but then, while the child is asleep, abuse substances and place the child at risk? Not very.

5. Expansion of parenting time at the holidays is very common. Seek the support of agencies that will supervise parenting time for a fee. These agencies may not be available on the holiday, but may be available a day or two afterward.

Celebration can occur at any time. Arrange supervised visits for the day before or after the holiday. Many agencies will supervise visitation off site, traveling with the parent to public places for parenting time.

These tips are not designed to constitute legal advice. For information about how you and your family can be together for holiday parenting time while your DYFS case is ongoing, please contact Allison C. Williams, Esq. and schedule a consultation.